Re Coleman and Secretary, Department of Family and Community Services - [2002] AATA 772

DECISION AND REASONS FOR DECISION [2002] AATA 772

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/227

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BRADLEY MATTHEW COLEMAN
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date5 September 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS
SOCIAL SECURITY - youth allowance - overpayment - whether applicant a full-time student – whether "the particular study period" in sub-section 541B(1)(b)(i) of the Act refers to a semester or a full year of study – extrinsic material examined - whether grounds to waive part or all of debt.
Social Security Act 1991 ss.541B
Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998
Explanatory Memorandum to the Social Security Legislation Amendment (Youth Allowance) Bill 1997
Explanatory Memorandum to the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Bill 1998
Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150
Secretary, Department of Family and Community Service & Machan [2001] AATA 434
Miller & Secretary, Department of Employment, Education and Training (AAT 10412, 16 June 1995)

REASONS FOR DECISION

5 September 2002 Senior Member J.A. Kiosoglous MBE

This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 23 April 2001 (T2), which affirmed the decision of an Authorised Review Officer (ARO) of 5 March 2001 (T16), to raise and recover a youth allowance debt in the amount of $1,613.69 for the period 28 February 2000 to 5 July 2000.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T17) together with eight exhibits, two tendered by the applicant (Exhibits A1 and A2) and six by the respondent (Exhibits R1-R6). The applicant appeared and was represented by Mr Chris Gent, Education and Welfare Officer, Adelaide University, and the respondent by Mr James Underwood, a departmental advocate. No witnesses were called to give evidence.
The issues before this Tribunal are whether or not the applicant was a full-time student in the period 28 February 2000 to 5 July 2000, and if not, whether or not there are grounds to waive the right to recover all or part of the youth allowance debt.
background to the application
Briefly, the applicant enrolled in the year 1999 in a Bachelor of Health Science course at the University of Adelaide. Completion of this course would enable the applicant to be the recipient of the degree of Bachelor of Health Science. In the first semester of the year 2000 he enrolled in one topic, Systematic Histology and Embryology II and in the second semester in two topics, Biology of Disease II and Human Movement Studies III. In addition, he enrolled in the topic, Human Biology II, over the full year.
In the first semester of the year 2000 the applicant undertook study with a workload of eight points whilst in the second semester, he undertook study with a points value of fourteen points. The total points attempted by the applicant and passed in the year 2000 amounted to twenty-two points. The Tribunal finds that on the evidence before it, which is not disputed, the applicant undertook study in the way described because he had no choice, given the subjects offered. The applicant considered that he had been a full-time student at all times.
The start date for his youth allowance was 8 February 1999 and for which year the applicant was considered to be a full-time student by the respondent. However, the respondent after receiving details as to the applicant's enrolment details for the first semester of the year 2000 considered that his workload had become less than 75% of a normal full-time load. The respondent considered such enrolment to be a variation and that as a result he did not notify Centrelink within fourteen days of such variation to his enrolment. As a result a delegate of the respondent decided on 9 February 2001 (T10) to raise and recover a youth allowance debt of $1,613.69 pursuant to section 124 of the Social Security Act 1991 (the Act) for the period 28 February 2000 to 5 July 2000 on the basis that the applicant was not a full-time student throughout the first semester of the 2000 academic year.
The applicant by letter dated 19 February 2001 (T11) requested a review of the decision. This was considered by an ARO who on 5 March 2001 (T16) affirmed the decision. It was from this decision of the SSAT that the applicant applied to the Administrative Appeals Tribunal (AAT) for review.
legislation
As to the undertaking of full-time study, section 541B(1) of the Act provides, inter alia, as follows:
"541B.(1)        For the purposes of this Act, a person is undertaking full-time study if:
(a)       the person:
(i)is enrolled in a course of education at an educational institution; or
(ii)…; or
(iii)…; and
(b)       the person:
(i)is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or
(ii)…;
either:
(iii)in a case to which subsection (1A) does not apply – at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsection (2) to (4)); or
…"
The meaning of "normal amount of full-time study" is provided in sub-section 541B(2) of the Act as follows:
"541B.(2) For the purposes of paragraph (1)(b), the normal amount of full-time study in respect of a course is:
(a)if the course is a designated course of study within the meaning of Chapter 4 of the Higher Education Funding Act 1988 – the standard student load determined in respect of the course by the institution in question under subsection 39(2) of that Act; or
(b)if the course is not such a designated course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course – the amount so defined; or
(c)otherwise – an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it."

applicant's submissions

Mr Gent submitted on behalf of the applicant that unless one seeks a special and exclusive interpretation of the meaning of "full-time study" then the particular period of study to be considered should be a year. It was submitted that the applicant was enrolled as a full-time student in the year 2000 as evidenced by his course work results (Exhibit A2). Mr Gent submitted that the load which is representative of a full-time student is 1.000 for a year and that the applicant undertook a load of 0.915 in the year 2000. Mr Gent explained that the normal annual full-time study load for Adelaide University students was 24 points and that in the year 2000 the applicant undertook 22 points. Mr Gent submitted that as the applicant was undertaking 22 out of 24 points, then he was clearly undertaking more than the 75% requirement under section 541B of the Act.
Mr Gent submitted that the issue in this case is whether or not the Tribunal has to assess whether the applicant was enrolled in full-time study in each semester or whether the full year should be used to ascertain this, and that the respondent questioned whether the applicant was enrolled in full-time study during the first semester of the year 2000, namely from 28 February 2000 to 5 July 2000. It was submitted that there is no clear legislative interpretation or policy which necessitates ignoring the year and looking only at a semester in determining the "particular study period" for the purposes of section 541B. After referring the Tribunal to sub-section 541B(1), Mr Gent submitted that the words "such as, for example, a semester" within sub-section 541B(1)(b)(i) of the Act had been taken by the respondent as a direction rather than as an example.
Mr Gent referred the Tribunal to the Federal Court decision in Secretary, Department of Employment, Education, Training & Youth Affairs v Gray [1999] FCA 1150 and to the Tribunal decisions of Secretary, Department of Family and Community Services & Machan [2001] AATA 434 and Miller & Secretary, Department of Employment, Education and Training (AAT 10412, 16 June 1995) as supporting the applicant's position. He submitted that in Gray, the issues are identical although the decision was made under the Student and Youth Assistance Act 1973. It was submitted that in Machan, the Tribunal stated at paragraph 14:
"14. I agree with the submissions by Ms Koller, for the Respondent, that the words "(such as, for example, a semester)" in paragraph 541B(1)(b)(i) of the Social Security Act 1991 are just that, namely an example."

It was submitted that the wording of sub-section 541B(1)(b)(i) indicated that there is a need to look at each semester in certain cases but not all cases and that in the applicant's situation, the normal period of a year should be used in determining the "particular study period".

Mr Gent referred the Tribunal to the University of Adelaide Calendar – Volume II (Exhibit R5) and in particular to "1.4 Enrolment and re-enrolment" and submitted that it stated that the normal university courses ran in academic years. It was submitted that the fact that the academic year can be divided in so far as enrolment is concerned was neither here nor there and is only relevant if, for example, a student has a semester in which they undertake no study at all.
Mr Gent submitted that the "particular period of study" in sub-section 541B(1)(b)(i) of the Act remains a year but that the example of a semester was given in the legislation to enable a student to qualify for a benefit if, for example, he or she only had one semester to go in a particular course. It was submitted that the respondent has placed too much emphasis on the word "semester" in the legislation when determining the legislative intent. Mr Gent submitted that there is no conclusive definition of the "particular period of study" requirement but that there are as many references to "full year" in the legislation and other instruments as there are to "semesters". It was submitted that the respondent is seeking unfairly to use extrinsic material to disadvantage the applicant in beneficial legislation and that it was outside the intention and wording of the Act to seek a definition which is pejorative. Mr Gent submitted that despite references to "semester" in the material, he gave the example of other times when it refers to a "year". As an example he referred the Tribunal to the Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 and in particular point 1.4 which refers in its definitions of "long course" and "short course" to the basic period of one year, and to point 1.7, where in its example it refers specifically to "a full-time year of a course".
It was submitted that whilst there has been discussion about the mechanics of enrolling in one semester at a time and the semester being used as the "particular study period" to be considered, it is very hard to see one's enrolment as purely semester-based when at least one of the subjects goes for the whole year.
Mr Gent submitted that the "particular period of study" means the period of study for which the student is enrolled and in this case that period equals one year. Mr Gent submitted that it was not a matter of waiver but that that the respondent's interpretation of the legislation unfairly penalises students in situations such as the applicant.
respondent's submissions
Mr Underwood made submissions on behalf of the respondent. Mr Underwood referred the Tribunal to a document setting out the applicant's academic transcript illustrating the applicant's enrolment for each semester and the whole year (T8/41). It was submitted that during semester one, the applicant was studying a total of 8 points or units (4 points for Systematic Histology and Embryology II – Semester 1 subject; and 4 points for Human Biology – Full year subject worth 8 points, therefore 4 points being apportioned for each semester). In semester two, the applicant studied for a total of 14 units. Mr Underwood submitted that under the legislation, it is necessary for a student in the applicant's situation to study for at least 9 points per semester to be classified as a full-time student (9 points per semester would be equal to ¾ of a normal study load of 12 per semester). It was submitted that as the applicant was only studying for 8 points in semester one he could not be classified as a full-time student.
Mr Underwood submitted in relation to youth allowance generally that the payment was introduced as a flexible income support payment for young people. Newstart allowance was considered inflexible and detrimental to encouraging further study whereas youth allowance allows a person to pursue options, for example, study, work, an activity agreement, or a range of employment options or training programs. It was submitted that youth allowance was not focused solely on study and that if a person is not studying full-time, then he or she must do other things in conjunction with that part-time study, for example, volunteer work. Mr Underwood submitted that for those who undertake full-time study, the requirement is that they undertake ¾ of a full-time load during each period of study.
Mr Underwood submitted that there is no definition of "period of study" in the legislation as it was not possible to have one definition covering all situations. Mr Underwood gave the example of the University of Adelaide having both semesters and trimesters.
It was submitted that the Department breaks down the study period into the smallest unit possible for reasons of both consistency and flexibility. Mr Underwood submitted that students could choose, for example, to study in first semester and then do voluntary work or an approved activity instead of study during semester two and still qualify for youth allowance. Therefore, the system is flexible enough to allow students to study by semester.
In relation to the Adelaide University Calendar Volume II (Exhibit R5), it was submitted that all that the paragraph "1.4 Enrolment and re-enrolment" illustrated was that within the constraints of the calendar year, there was to be an academic year and the paragraph serves no further purpose than that. It was submitted that the fact that the university sets down guidelines for enrolment such that a person enrols for an academic year is merely a requirement of the university and is irrelevant to the issue before the Tribunal.
It was submitted that it is convenient for all students to go through the process of Dean approval of their subjects and courses at the beginning of the calendar year, but that students can still modify their enrolment throughout the year. Mr Underwood referred the Tribunal to point 1.4.24 of the Calendar, which prescribes separate dates for withdrawal from semester and full-year subjects. It was submitted that there are cost savings to the university for yearly enrolments as opposed to semester enrolments and that enrolment does not guarantee a student's right to study or to continue to study and that the university can expel a student or limit their study (point 1.10). It was further submitted that enrolment for the whole year does not mean that a student will actually study for that whole year.
Mr Underwood submitted that the Department needs to consider various universities, various courses and the need for flexible learning options, for example, distance learning or self-paced study. It was submitted that to insist upon the academic year as the only relevant "period of study" is an inflexible approach. Mr Underwood submitted that the Department's semester focus was not exclusionary but rather just the Department's consistent approach to students in similar circumstances. Mr Underwood emphasised that the semester approach allowed a student receive youth allowance whilst finishing their course in semester one and allowed people whose desired subjects were only in a particular year to vary their study accordingly. It was submitted that if a person is one subject short for a semester, they can do a range of activities in addition to study to still qualify for youth allowance, for example, volunteer or part-time work.
Mr Underwood referred the Tribunal to the Federal Court decision in Gray and in particular to paragraph 23 where Hill J stated:
"The question will always be one of construction in the particular context: Re Licensing Ordinance (1968) 13 FLR 143 at 147. It is likewise correct that courts will strain against a construction which renders some words used by Parliament, or some provision, superfluous: The Commonwealth v Baume (1905) 2 CLR 405, R v Bishop of Oxford (1879) 4 QBD 245. On the other hand, if this is what the context requires, then so be it."
Mr Underwood submitted that the wording of sub-section 541B(1)(b)(i) of the Act was not superfluous and that the example of a semester has direct relevance to the provision. It was submitted that the example was intended to direct the decision-maker to a particular interpretation but allowing them to look at other study periods if the case so requires, for example, in the case of trimesters or individual topics of study. It was submitted that this is the only section in which an example is embedded in the text and this fact gives the example significance.
Mr Underwood also pointed out that in sub-section 541B(1)(b)(i) of the Act, the emphasis is on when a person "is" enrolled for the course. It was submitted that in a temporal sense this means that the present (at the time the assessment is to be made) is the relevant time and that as first semester subjects cease at the end of July, then it could disadvantage students if the full year is used to calculate entitlement. Mr Underwood submitted that the legislation previously had "was" instead of "is".
Mr Underwood submitted that extrinsic evidence can be examined if the legislation on its face is unclear. Mr Underwood referred the Tribunal to the explanatory memorandum to the Social Security Legislation Amendment (Youth Allowance) Bill 1997 (Exhibit R2) (this Bill became Act No.18 of 1998) and submitted that reference is made to "semester" rather than "period of study" in relation to discussion of sub-section 541B(4) of the Act. Mr Underwood further referred the Tribunal to the explanatory memorandum to the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Bill 1998 and in particular to the passage stating as follows:
"Subsection 541B(4) gives a period of grace of up to 2 weeks to a person who is undertaking full-time study in order to arrange his or her studies for the semester. Item 10 amends this subsection to make it clear that this period of 2 weeks is available to all youth allowance recipients who are undertaking full-time study, including those who are enrolling for a period that is not a semester. Consequently, the term 'semester' has been replaced with a reference to 'the study period'."

Mr Underwood submitted that this shows a clear intention that "the study period" is a semester.

Mr Underwood then referred the Tribunal to the further supplementary explanatory memorandum to the Youth Allowance Consolidation Bill 1999 (Exhibit R4) and in particular the sentence: "Otherwise, for example, a student may only have to have a 66% study load in the last semester of a degree if he or she has done additional units in earlier semesters". It was further submitted that in the Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 (Exhibit R3) and in particular in relation to clause 2.1 "long courses" that defining the study period to be a year would clash with this provision.

It was submitted that, overall, the extrinsic material demonstrates that the Minister has consistently referred to the term "semester" in relation to the study period and that this therefore shows a clear intention that the usual study period is a semester.
In relation to the various authorities referred to by the applicant, Mr Underwood submitted that the cases of Gray and Miller both concern the Austudy regulations under the Student and Youth Assistance Act 1973 whereas the current Tribunal is considering the youth allowance legislation. It was submitted that Austudy and youth allowance are quite distinct payments and that Austudy concerned payment in relation to study amongst a distinct age group whereas youth allowance is an activity-based payment. There are also significant differences in the wording in the two pieces of legislation. It was submitted that therefore these authorities are not comparable with the current case and hence are not relevant.
Mr Underwood further submitted that the decision in Machan was wrongly decided. It was submitted that the Tribunal in that case looked at the standard student load under sub-section 541B(2) to determine the student's entitlement to youth allowance. In the current case, the standard student load at Adelaide University for the Bachelor of Health Sciences is 72 units over three years in the case of a three-year degree (Exhibit R5, page 264). Mr Underwood submitted that universities are not concerned with youth allowance qualification but rather with funding under the Higher Education Contribution Scheme (HECS) and it was submitted that the standard student load has no relevance to defining the "particular study period". The standard student load merely sets the full-time study load for a course of study.
In relation to the issue of waiver, Mr Underwood submitted that there are no factors that mean that the right to recover the debt should be waived.
discussion and findings
The Tribunal in arriving at its decision has taken the evidence as a whole into account. As such prime consideration is given to the applicable legislation. It is not disputed that the applicant in the year 2000 studied a total of 8 units/points for semester one. The subjects studied during that time were Systematic Histology and Embryology II. In the second semester he studied the subjects Biology of Disease II and Human Movement Studies III. Each of these three subjects were semester ones. In addition to these he also studied Human Biology II which was worth eight points over the full year. Hence in the first semester the 8 points were made up of Systematic Histology and Embryology II – 4 points; and Human Biology II – 4 points respectively; whilst for the second semester, the points awarded were Biology of Disease II – 4 points; Human Movement Studies III – 6 points; and the continuation of Human Biology II – also 4 points. This made a total of 14 points for the second semester and together with the eight points for the first semester totalled 22 points for the year. In actual fact the maximum points for a full-time year of study at the University of Adelaide are 24 of which three-quarters (75%) equals 18 points. This halved over two semesters equals 9 points for each semester.
Whilst the number of points for the year is set at 24 points there is provision under the Act for a student to be able to undertake at least three-quarters of the normal amount of full-time study and still qualify for youth allowance. The respondent considered that the applicant's workload of 8 points for the first semester was less than 75% of the normal full-time workload for a semester. Accordingly the respondent taking this workload into account considered it to be a variation and that as a result the applicant failed to notify Centrelink of this within 14 days. It was on this basis that that respondent decided that the applicant was not a full-time student throughout the first semester academic year and hence seeks repayment of youth allowance paid in that period.
It was submitted by Mr Gent that there is no clear legislative interpretation or policy which necessitates ignoring the year and looking only at a semester in determining the "particular study period" for the purposes of section 541B of the Act. He further submitted that the wording of sub-section 541B(1)(b)(i) indicates that there is a need to look at each semester in certain cases, but not all cases. He also submitted that in this applicant's situation the normal period of a year should be used in determining the "particular study period". He submitted that the respondent's interpretation of the legislation unfairly penalises students in situations such as that of the applicant.
Mr Underwood in his submissions stated that the legislation does not provide a definition of "period of study". He submitted that Centrelink breaks down the study period into the smallest units possible for reasons of both consistency and flexibility. He also submitted that the system is flexible enough to enable students to study by semester.
Mr Underwood submitted that newstart allowance was considered inflexible and detrimental to encouraging further study. He stated that in relation to youth allowance, however, the payment was introduced as a flexible income support payment for young people. He further submitted that youth allowance was structured in such a way that it allows a person to not only pursue options such as work, an activity agreement or a range of employment options or training programs but also to study. He submitted that youth allowance was not focused solely on study. He stated that if a person is not studying full-time, then such person must do things in conjunction with that part-time study, for example, volunteer work. Where a student undertakes full-time study, he submitted that the requirement is that the student undertakes 75% of a full-time load during each period of study.
The Tribunal in making its decision has taken the evidence as a whole into account including the authorities relied upon by the parties. The Tribunal in considering the workload over the year and the breakdown of each semester is satisfied that the 8 points incurred for the first semester is under 12 points and certainly under 9 points, being the 75% variation. However, in the second semester, the applicant's workload was in excess of 12 points, being 14 points in total.
In considering this matter the Tribunal agrees with the Department that it needs to consider the need for flexible learning options by the various universities in providing their courses. The Tribunal is satisfied that the Department's semester focus is not exclusionary but a rather consistent approach to students in similar circumstances. In making submissions Mr Underwood referred to the extrinsic evidence and the legislation. The Tribunal is satisfied that the legislation supported by the extrinsic evidence means that a student has to do a certain amount of points per semester and on the facts presented to this Tribunal the applicant unfortunately falls short.
Notwithstanding this and the intention of the legislation it is not made clear to students as to the proper interpretation of the legislation so as to enable students to know how to spread out their subjects during the year. The Tribunal is satisfied and finds that the youth allowance is not a study allowance but rather an activity allowance which allows, inter alia, the right to study. The proper meaning should be made quite clear to students to assist them in planning their study program not only for a full academic year but also for the amount of subjects it is necessary for them to undertake each semester in order to reach the 75% minimum required in section 541B(1)(b)(i) of the Act. This is unfortunate for the applicant who has shown himself to be a very keen and conscientious student.
There is no doubt, as previously stated, that the applicant over the full year undertook more than 75% of the normal amount of full-time study and in fact overloaded on his subjects in second semester. This proved his desire to succeed with his studies. Whilst he commenced receiving the youth allowance from 8 February 1999 it was for the period 28 February 2000 to 5 July 2000 that the respondent decided on 9 February 2001 to raise and recover the debt of $1,613.69 on the basis that he was not a full-time student during the said period. The Tribunal having been satisfied that the decision of the SSAT was correct was asked to consider exercising a discretion to waive repayment of the debt.
As previously stated, the applicant, through no fault of his own, was not enrolled for at least seventy-five per cent of the normal amount of full-time study during semester one. At the same time, the unfortunate error to undertake a lesser load, be it only by one point, did not arise solely because of any administrative error by Centrelink and therefore, section 1237A of the Act does not apply. In considering the evidence as a whole the Tribunal is also unable to be satisfied that there are special circumstances which enable a waiver of the debt according to section 1237AAD of the Act.
Accordingly, for the reasons outlined, the Tribunal affirms the decision under review.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  13 February 2002
Date of Decision  5 September 2002
Counsel for the Applicant        Mr Chris Gent
Solicitor for the Applicant         -
Counsel for the Respondent    Mr James Underwood
Solicitor for the Respondent    Centrelink